CITATION: Errol Massiah v. Justices of the Peace Review Council, 2020 ONSC 4746
DIVISIONAL COURT FILE NO.: 808/18 DATE: 20200831
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, Backhouse and Favreau JJ.
BETWEEN:
Errol Massiah Applicant
– and –
The Justices of the Peace Review Council – and – The Lieutenant Governor by and with the advice and concurrence of the Executive Council of the Legislative Assembly for the Province of Ontario and the Attorney General of Ontario Respondents
Osborne G. Barnwell, for the Applicant Scott C. Hutchison and Matthew R. Gourlay for the JPRC Brent Kettles and Joanna Chan for the Attorney General of Ontario and Lieutenant Governor
HEARD at Toronto by videoconference: July 31, 2020
Backhouse J.
Nature of Proceeding
[1] Errrol Massiah, (the “Applicant”) applies for judicial review of the decision of the Hearing Panel (the “2018 Panel”) of the Justices of the Peace Review Council (the “JPRC”), dated March 29, 2018, declining to recommend that the Attorney General compensate him for legal costs incurred in a 2012 discipline proceeding (the “2012 Panel”), pursuant to s. 11.1(17) of the Justices of the Peace Act, R.S.O. 1990, c. J.4 (the “Act”).
[2] For the reasons that follow I would dismiss the application for judicial review.
Adjournment Request
[3] At the opening of the hearing, this Court considered the Applicant’s motion for an adjournment of the hearing. The Applicant sought a two week adjournment for the purpose of filing additional materials and making arguments that anti-Black racism affected the hearing and outcome of the case before the JPRC. Counsel for the Applicant submitted that he did not feel comfortable raising this issue until he saw the public response to the killing of George Floyd on May 25, 2020, which suggests a change in attitude and a public openness to the arguments he wanted to advance. He submitted that his concerns about raising the issue earlier were also justified by the JPRC’s previous referral of Mr. Guiste, the Applicant’s former lawyer, to the Law Society of Ontario for, among other things, raising issues of anti-Black racism.
[4] In support of his motion, the Applicant relied upon the 2018 Panel’s statement in its reasons that the Applicant, who is Black, should have dismissed Mr. Guiste, who is also Black, and should have anticipated that the Applicant would be found guilty of judicial misconduct. The Applicant’s lawyer also relied on allegations of cronyism and exclusivity between Presenting Counsel at the hearing before the JPRC and the panel. He further submitted that the 2018 Panel’s finding that his client was a serial sexual harasser relies upon a stereotype of Black men as womanizers and sexual predators. Counsel for the Applicant submitted that he was not trying to delay the matter and that he had already taken steps to retain an expert for the purpose of obtaining a report on the issue of anti-Black racism.
[5] The Respondents opposed the adjournment. JRPC made the following submissions. The 2018 Panel was entitled to rely upon the findings of the 2012 Panel which were the subject of judicial review in 2016, and an unsuccessful attempt under Rule 59.06 of the Rules of Civil Procedure[^1] to reopen the matter. The findings are final and no longer the subject of judicial review. The referral of Mr. Guiste to the Law Society of Ontario was made on the basis that he brought frivolous motions and engaged in conduct that often demonstrated a mockery of the process. To the extent that the 2018 Panel relied on Mr. Guiste’s conduct before them, there was nothing suspect about that. Mr. Guiste continued to email the 2018 Panel ex parte during its deliberations to raise new arguments and he had to be asked to desist from emailing the Secretary.
[6] This court dismissed the Applicant’s motion for an adjournment for two primary reasons.
[7] First, the issues the Applicant wished to raise are predominantly relevant to the conduct and outcome of the hearing before the 2012 Panel. The basis for the adjournment request at most has a tenuous link to the compensation issue before this court. The findings of sexual harassment made against the Applicant were made by the 2012 Panel and they have already been the subject of a separate application for judicial review. An attack on the 2018 Panel’s reliance on these findings is essentially a collateral attack on a decision that is not before this court. Similarly, the claims of cronyism are directed at the Presenting Counsel in the context of the 2012 Panel hearing. Finally, the 2018 Panel’s comments about Mr. Guiste’s conduct were based on comments about his conduct made by the 2012 Panel. As this court indicated to the Applicant’s counsel at the time the adjournment was denied, it was open to him to make submissions about anti-Black racism at this hearing insofar as they relate to the narrow issue before this court of whether the 2018 Hearing Panel erred in not recommending compensation for legal services. However, this court is of the view that, even if the adjournment had been granted to allow the Applicant to obtain expert evidence and raise the issues of anti-Black racism referred to above, there is no reasonable prospect of it affecting the result.
[8] Second, there has already been extensive delay in this matter and granting the adjournment would likely cause further lengthy delay. The 2018 Panel’s decision not to recommend compensation for legal services which is the subject of this judicial review was issued over two years ago. The underlying misconduct decision dates back to 2015. If this hearing had been adjourned, the reality is that it would have taken much longer than two weeks for it to be heard. If the Applicant obtained an expert report, the Respondents would likely respond with their own expert reports. The Respondents would also likely wish to respond to the serious allegations raised in the Applicant’s affidavit filed on the motion to adjourn. Cross-examinations could ensue. Given the tangential relevance of the issues the Applicant seeks to raise to the narrow issues on this application, any further delay is unjustified. It is important that there be finality to this longstanding matter.
[9] This court acknowledges that it difficult to raise the issue of anti-Black racism and accepts counsel for the Applicant’s explanation for why he did not raise it earlier. The denial of the adjournment in this case is not to act as a disincentive to any lawyer who considers it appropriate to raise issues of anti-Black racism in future cases.
Background
[10] This application is the culmination of protracted litigation concerning two complaints of judicial misconduct in 2011 and 2012, the latter of which resulted in the removal of the Applicant from the office of the justice of the peace and the denial of compensation for his legal expenses.
[11] In addition to several other procedural steps to contest his removal, the Applicant applied for judicial review of the decision of the Hearing Panel of the JPRC in 2012 (the “2016 Divisional Court Decision”). In allowing the application and remitting the matter on the sole issue of compensation for legal fees, Nordheimer J. (as he then was) summarized the lengthy factual background at paras. 2-14.[^2]
[12] The most salient aspects of the factual background are as follows.
[13] In 2011, the Applicant was brought before a panel of the JPRC (the “2011 Panel”) to defend allegations of judicial misconduct consisting of sexually inappropriate comments to female staff at an Oshawa courthouse between 2008 and 2010. The 2011 Panel concluded that some of the allegations had been proven and the Applicant received a ten day suspension, was required to apologize to the complainants, and was ordered to complete gender sensitivity training. The Applicant received compensation of $130,000 for the legal fees he incurred.
[14] During the course of the 2011 hearing, several employees at the Durham Region Provincial Offences Court contacted the Presenting Counsel to inform him that the Applicant had conducted himself in a similar manner at their workplace. After the 2011 hearing was completed, a complaints committee carried out an investigation and the 2012 Panel was convened to conduct a hearing on the allegations which were dated between 2007 and 2010. Those allegations concerned inappropriate interactions with female staff members (comments and looking at them in a suggestive manner), inviting court staff into chambers when not fully dressed, inappropriate conduct in the courtroom (particular interest in attractive female defendants), and unwanted touching of an employee (hands on the staff member’s shoulders)
[15] The Applicant raised several preliminary issues before the 2012 Panel. On January 12, 2015, the 2012 Panel released its decision on the allegations and found that each of the categories of misconduct had been proven. In so doing, the 2012 Panel rejected the Applicant’s explanations for his conduct (i.e. that it was part of his management style) and found that “[g]iven his depth of experience working in the area of human rights law, and his position as a judicial officer, the Applicant would have known or ought to have known that such behaviour could cause offence, harm, discomfort and/or undermine the dignity of female staff and prosecutors.”[^3]
[16] On April 28, 2015, the 2012 Panel recommended the removal of the Applicant. On April 29, 2015, the Applicant was removed from office by Order in Council O.C. 546/2015.
[17] With respect to the issue of compensation for legal costs, the 2012 Panel dismissed the request, finding that “ordering compensation in this case is wholly and completely inappropriate”.[^4]
The 2016 Divisional Court Decision
[18] On the application for judicial review, this court granted the application on one issue-namely, whether the Applicant should be compensated for his legal fees- and remitted the compensation issue to the 2012 Panel for reconsideration on the basis that the 2012 Panel started from the flawed premise that where there has been a finding of misconduct, the presumption should be that compensation will not be made.[^5] Nordheimer J., writing for this court, found that the costs of ensuring a fair, full and complete complaint process ought usually to be borne by the public purse because it is the interests of the public that are being advanced and maintained through the complaint process. However, he held that not every judicial official who is subject to a successful complaint is entitled to be compensated for their legal fees. The decision must be made separately in each case and only after a consideration of the particular circumstances of the case viewed in the context of the objective of the proceeding.[^6]
[19] The circumstances Nordheimer J. identified as relevant to the determination are[^7]:
• The nature of the misconduct and its connection to the judicial function;
• Misconduct that is more directly related to the judicial function may be more deserving of a compensation recommendation than conduct that is less directly related;
• In contrast, conduct that any person ought to have known was inappropriate will be less deserving of a compensation recommendation than would conduct that is only determined to be inappropriate as a result of the ultimate decision in a particular case;
• Misconduct where there are multiple instances may be less deserving of a compensation recommendation than would a single instance of misconduct;
• Similarly, repeated instances of misconduct may be less deserving of a compensation recommendation than one isolated incident;
• It is open to a hearing panel to indicate that the compensation should not include the costs associated with unmeritorious or unnecessary steps.
[20] Upon remittal, two members of the 2012 Panel received written submissions from the parties concerning the compensation issue, the Chair of the 2012 Panel having retired by that point. The two remaining members were unable to reach a unanimous decision. Accordingly, the Chief Justice of the Ontario Court of Justice appointed a new three member hearing panel (the 2018 Panel) to determine the narrow issue of compensation for legal expenses.
Decision of the 2018 Panel of the JPRC
[21] The 2018 Panel informed the parties that it would consider the written submissions they had filed with the remaining members of the 2012 Panel.
[22] In its decision dated March 29, 2018, the 2018 Panel dismissed the Applicant’s request for a recommendation that he receive compensation for the costs of legal services incurred in connection with the hearing. Amongst other things, the 2018 panel made the following findings and determinations:
• All of the factors to be considered in determining the appropriateness of compensation militate in favour of a denial of a recommendation that the justice of the peace be compensated. (para. 10).
• The misconduct here is serious and had little to do with the judicial function; most of the instances related to out-of-court interactions with female court staff in the courthouse. (para. 11).
• By the time this hearing was underway, the justice of the peace should have known his conduct was inappropriate based on common sense and everyday experience but especially so, once he had the benefit of the first Panel’s findings. (para. 13).
• This was not one isolated incident of misconduct. (para. 15).
• While there is a presumption in favour of having the public purse bear the legal costs, Mr. Guiste’s conduct in representing the Applicant did not advance the objective of the judicial discipline process in maintaining or restoring public confidence in the integrity of the judiciary. Yet throughout this hearing, the Applicant continued to retain the services of Mr. Guiste. As reflected in the 2012 Hearing Panel’s Addendum to its Reasons for dismissing the request for a recommendation for compensation, Mr. Guiste’s conduct often demonstrated a mockery of the process. (paras. 16-17).
• Mr. Guiste’s accounts for fees and disbursements, which exceeded half a million dollars, are unreasonable on their face. (para. 20).
• The Applicant is a vexatious litigant who has demonstrated no insight into his behaviour, the nature and objective of this process, and his role as a justice of the peace within the justice system. (para. 24).
Court’s Jurisdiction
[23] Pursuant to section 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, Chap. J.1, the Divisional Court has jurisdiction to grant any relief that an applicant would be entitled to in (1) proceedings by way of an application for an order in the nature of mandamus, prohibition or certiorari, or (2) proceedings by way of an action for a declaration or for an injunction or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.
Standard of Review
For the alleged breaches of natural justice and procedural fairness, it is unnecessary to conduct a standard of review analysis. The reasonableness standard of review applies to the substance of the 2018 Panel’s decision.
Relevant Law
[24] Sections 11.1(17) and 11.1(18) of the Justices of the Peace Act read as follows:
Compensation
11.1(17) The panel may recommend that the justice of the peace be
compensated for all or part of the cost of legal services incurred in
connection with the hearing.
Maximum
(18) The amount of compensation recommended under subsection (17)
shall be based on a rate for legal services that does not exceed the
maximum rate normally paid by the Government of Ontario for similar
services.
Issues
[25] The following issues are raised on this review:
- Was the Applicant denied natural justice and procedural fairness by:
(i) being denied the right to lead evidence in any form and the right to a public oral hearing?
(ii) the reliance on the 2012 Panel’s Addendum without allowing the Applicant or Mr. Guiste any opportunity to answer?
Was the 2018 Panel decision unreasonable?
Are the Attorney General for Ontario (“AGO”) and the Lieutenant Governor in Council (“LGIC”) proper respondents to this application?
Analysis
Issue 1: Was the Applicant Denied Natural Justice and Procedural Fairness?
[26] The Applicant submits that the 2018 Panel denied him natural justice and procedural fairness by denying him the opportunity to lead additional evidence and by denying him an oral hearing. The Applicant relies on the Court of Appeal’s decision in Re Lovering and Minister of Highways[^8] for the proposition that on a re-hearing by an administrative board, unless otherwise expressly stipulated, the board has a duty to hear any additional evidence properly adduced by either party and relevant to the issue to be determined and that only if this is done will the parties have a proper re-hearing.
[27] After the 2016 Divisional Court Decision ordered a re-hearing on the compensation issue, the Applicant’s request for an oral hearing was denied. Fresh written submissions were provided by both sides. These submissions were first considered by the remaining two members of the 2012 Panel who, as already noted, were unable to reach a unanimous decision. The 2018 Panel based its decision on the same written submissions and the record.
[28] On April 19, 2017, the Applicant filed a motion seeking leave to admit fresh evidence on the compensation issue. On May 10, 2017 the 2018 Panel dismissed the Applicant’s motion. The Panel’s reasons are short and are set out in full below:
“BACKGROUND
On March 30, 2017, this Hearing Panel, released our Decision on a Motion for Disclosure of Appointment Letters, A Motion Asserting Bias or Reasonable Apprehension of Bias, Conflict of Interest and Breach of Procedures by Presenting Counsel; and, Notice of Intention to Bring a Motion Seeking a Re- Opening of the Findings of Liability and Penalty. In that decision, we directed Mr. Massiah to file no more Motions without seeking our leave, to avoid an abuse of this tribunal’s process.
On April 19, 2017, Mr. Massiah filed a motion seeking leave to admit fresh evidence.
Mr. Massiah relies on Re Lovering and Minister of Highways, 1965 276 (ON CA), [1965] 2 O.R. 721- 723, to suggest that we hear new evidence. In that matter, the Ontario Municipal Board (OMB), upon being ordered by a reviewing court to reconsider the issue, declined to hear fresh evidence and relied solely on that presented at the original hearing. The OMB was then ordered again to re-hear the matter but with the inclusion of relevant fresh evidence from either or both parties.
The Lovering decision is distinguishable from the matter before us, as we invited both parties to file written submissions in support of their positions for our reconsideration of the compensation of costs issue. We placed no limits on what the parties could file, other than the number of pages to be filed. Both parties have now filed their submissions and we are in the process of fully considering them.
In addition to the Lovering decision, we have reviewed the documents Mr. Massiah filed with this motion and are of the view that this is yet another attempt to re-litigate or newly litigate matters from the original hearing. Mr. Massiah wishes to further argue the issues surrounding the ‘complainant’ and whether there is a valid “complaint”. We decided the facts and law on this issue during the hearing. Neither the reviewing Divisional Court nor the Ontario Court of Appeal took issue with our decision surrounding the ‘complainant’ and the legality of the “complaint”. The Divisional Court, in Massiah v. Justices of the Peace Review Council, 2014 ONSC 3415 and in Massiah v. Justices of the Peace Review Council, 2016 ONSC 6191, has now informed Mr. Massiah twice that under section 10.2(1) “any” person may make a complaint about the conduct of a justice of the peace. Mr. Massiah now attempts to categorize the same matter as relevant to the compensation of costs issue. In our view, there is no basis to support his position; rather it is an attempt to further litigate the issue.
We have twice now, in our decision of March 30, 2017, noted above, as well as in our Decision on Jurisdiction in Relation to a Notice of Constitutional Question of March 6, 2017, carefully and thoroughly informed Mr. Massiah of our very limited jurisdiction in this matter. As we stated, our mandate is set out in para 62 of Massiah v. Justices of the Peace Review Council, 2016 ONSC 691. We will not deviate from that mandate.
DECISION
- Therefore, leave to bring a motion to admit fresh evidence is denied.”
[29] The May 10, 2017 decision makes it clear that the Applicant was not seeking to adduce evidence relevant to the compensation issue but was attempting to re-litigate matters from the outcome of the hearing before the 2012 Panel that had been finally determined.
[30] In a letter to the Respondent on February 28, 2017, the Applicant’s counsel sought to address 10 issues for adjudication at the re-hearing of the compensation issue which included the constitutionality of the original hearing and a reconsideration of whether the prehearing motions and motions during the hearing were frivolous. Again, this would have involved relitigating and potentially undermining the basis upon which the final findings had been made. These issues were outside the scope of the mandate of the 2018 Panel and there are no grounds for finding that procedural fairness was denied on this basis.
[31] The Justices of the Peace Review Council Procedure Document (“the JPRC Procedure Document”) provides that “hearings shall be open to the public unless the hearing panel determines in accordance with criteria established by the Review Council that exceptional circumstances exist”[^9]. The Applicant relies upon the JPRC Procedure Document as support for his submission that because there was a public hearing into the complaint, then the issue of compensation was also required to take place in public.
[32] Nothing in the JPRC Procedure Document or the Act supports the conclusion that a further, post-disposition oral hearing must be held before the panel can decide whether to make a recommendation in regard to compensation.
[33] S. 5.2.1 of the Statutory Powers Procedure Act, (“SPPA”), which is applicable to JPRC hearings,[^10] states:
“A tribunal may, in a proceeding, hold any combination of written, electronic and oral hearings.”
[34] S.9 (1) of the SPPA provides:
9.(1) An oral hearing shall be open to the public except where the tribunal is of the opinion that,
(a) matters involving public security may be disclosed; or
(b) intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public,
in which case the tribunal may hold the hearing in the absence of the public.
(1.1) In a written hearing, members of the public are entitled to reasonable access to the documents submitted, unless the tribunal is of the opinion that clause (1) (a) or (b) applies.
[35] The wording of sections 5.2.1 and 9 (1.1) of the SPPA supports that a written hearing comes within the meaning of a public hearing. Section 5.2.1 provides that a proceeding may take place in writing and s. 9 (1.1) provides the mechanism for ensuring the public nature of a written hearing. In this case, in accordance with s. 9 (1.1), the 2018 Panel ruled that the documents filed by the parties and its rulings on the rehearing were public documents and fully available to interested parties.
[36] The Applicant relies on s. 11.1 (4) of the Act to support his argument that he was entitled to an oral hearing as opposed to a written hearing. S. 11.1(4) of the Act provides: “The Statutory Powers Procedure Act, except sections 4 and 28, applies to the hearing.” S.4 of the SPPA provides: “Any procedural requirement of this Act, or of another Act or a regulation that applies to a proceeding, may be waived with the consent of the parties and the tribunal.” Section 28 of the SPPA states: “Substantial compliance with the requirements respecting the content of forms, notices or documents under this Act or any rule made under this or any other Act is sufficient.” The Applicant incorrectly submits that the effect of this provision is that there can be no waiver of the requirement that the compensation question be considered in public. In deciding to hold a written hearing, the 2018 Panel was not waiving a requirement for an oral hearing; it was doing what it was entitled to do pursuant to sections 5.2.1 and 9 (1.1) of the SPPA.
[37] As I have said, I find no procedural requirement in the Act or the SPPA that requires an oral hearing on compensation. I also find no support in the caselaw for a requirement of an oral hearing on compensation.
[38] The Applicant adds that on a Baker analysis, full participatory rights would need to be afforded to him, particularly because the relevant statute mandates it, because of the importance of the decision to the independence of a jurist, and because of his legitimate expectations.
[39] The common law would not compel an oral hearing on the single issue of costs in these circumstances. In Baker, the Court rejected the proposition that an oral hearing was always required where a humanitarian and compassionate exemption to a deportation order is sought. After holding that Ms. Baker was entitled to more than a minimal degree of procedural fairness, L’Heureux-Dubé J. stated:[^11]
However, it also cannot be said that an oral hearing is always necessary to ensure a fair hearing and consideration of the issues involved. The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations.
[40] At stake for Ms. Baker was the opportunity to remain in Canada with her four children. Other similarly high-stakes decisions for which an oral hearing is not required include: a decision of the Minister of Justice to surrender a person for extradition;[^12] a decision of the Minister of Citizenship and Immigration to deport a person to a country where he may face torture;[^13] and the Parole Board’s decision to suspend a long-term supervision order.[^14] As summarized by Guy Régimbald:[^15]
There are many forms of hearings, some may be oral with court-like procedures, while others may be written only. It all depends on the statutory prerequisites, the statutory mandate, the principles of fundamental justice, and the rules of procedural fairness. As long as the hearing allows parties to communicate their positions in a fair manner and allows the parties to collect the necessary information, the hearing will be adequate.
[41] It is not customary to have an oral hearing on the issue of costs and a Baker analysis does not require it. The Applicant had the opportunity to file the documents he wished to rely upon on the re-hearing of the compensation issue (subject to the limit on the number of pages to be filed) and to communicate his position in a fair manner. There are no grounds for finding that there was a lack of natural justice or procedural unfairness on this basis.
[42] The Applicant further submits that the 2018 Panel denied him natural justice and procedural fairness by relying on the 2012 Panel’s Addendum without allowing him or Mr. Guiste any opportunity to answer. He submits that Mr. Guiste did not have a fair opportunity to defend his name during the hearings and the panel refused reply submissions from Mr. Guiste which were directed to rebutting Presenting Counsel’s submission that he brought frivolous motions.
[43] The Applicant was afforded an opportunity to address the “attacks on the reputation of Mr. Guiste” when fresh submissions were provided by both sides after the re-hearing was ordered, to the extent that this was relevant to the compensation issue. Mr. Guiste was not a party to the proceedings in any event and the focus of this application is not to defend his reputation.
[44] I find no denial of natural justice or procedural unfairness.
Issue 2: Was the 2018 Panel decision unreasonable?
[45] The Applicant submits that the 2018 Panel decision is unreasonable because (a) it relies on the “artificial” distinction between matters which relate to the discharge of judicial functions and those which relate to “out of court” or “not directly connected to the judicial function”, undermining the rationale of judicial independence and financial security; (b) it ignores relevant jurisprudence, the statutory framework, and the factual record; and (c) it is predicated on a critique of counsel’s conduct which violates the Applicant’s right to counsel, judicial independence, and the remedial objective of judicial misconduct proceedings.
(a) Related to the Judicial Function
[46] In his factum, the Applicant argues that “[i]t is apparent from the reasoning of the Panel that only the matters which involve his dealings with cases while he is sitting on the Bench constitute judicial functions worthy of a recommendation for funding of legal fees.” He submits that it is the judicial aspect of his job which took him to the courthouse and that not to acknowledge that all his actions at the court house were carried out in support of his judicial function “eviscerates the underlying rationale of judicial independence and financial security”.
[47] The 2018 Panel was directed by the 2016 Divisional Court Decision when determining its costs recommendation to consider chief among the circumstances, the nature of the misconduct and its connection to the judicial function. As set out by Nordheimer, J., misconduct that is more directly related to the judicial function may be more deserving of compensation than conduct that is less directly related. In contrast conduct that any person should have known was inappropriate will be less deserving of compensation than would conduct that is only determined to be inappropriate as a result of the ultimate decision in a particular case.
[48] The acts that constituted the Applicant’s misconduct had little to do with the exercise of his judicial function, which involves the exercise of judicial discretion or judicial decision-making. The Panel found that while one aspect of the misconduct was leering at female defendants in a sexual manner, most of the instances of misconduct related to out-of-court interactions with female court staff in the courthouse. It was not unreasonable for the 2018 Panel to find that just because the misconduct took place on court premises, this does not necessarily make it conduct directly related to the judicial function. I do not agree that the 2018 Panel was unreasonable in concluding that the nature of the Applicant’s misconduct which occurred at the courthouse was not related to the judicial function and was therefore a factor weighing against compensation.
[49] The Applicant submits that the 2018 Panel’s finding that the Applicant ought to have known that his conduct was inappropriate based on common sense and everyday experience ignores the finding of the 2011 Panel that the Applicant did not appreciate that his conduct was inappropriate and unacceptable. The Applicant submits that the 2018 Panel’s finding ignores the evidence that his behavior was culture-specific as explained in an expert report submitted at the disposition stage of the 2012 panel deliberations. It is submitted it also ignores that the 2012 charges overlapped with the 2011 charges for which he was in the process of receiving counselling. It is submitted that there was room to view the Applicant’s behavior in relation to the second set of charges (which took place between 2007 and 2010) as being done with the same innocent mindset (or utter ignorance) that characterized the first set of charges (which took place between 2008 to 2010).
[50] I find no merit in the Applicant’s submission that because of the temporal overlap between the two sets of allegations, he was unfairly punished when he could not have known that the misconduct found in relation to the second set of allegations was wrong at the time it occurred. This ignores what the 2018 Panel found. At paragraph 13 of its decision, the 2018 Panel held:
[13] By the time this hearing [in relation to the second set of allegations] was underway, this justice of the peace should have known that his conduct was inappropriate based on common sense and everyday experience but especially so, once he had the benefit of the first Panel's findings. The 2012 Panel found, on the basis of the justice's testimony at the hearing, that Mr. Massiah is "unable or unwilling to acknowledge the distinction between appropriate and inappropriate conduct in the workplace".
[51] By the time of the hearing before the 2012 Panel in July, 2014, the Applicant had the benefit of the 2011 Panel’s findings and had completed the counselling in gender sensitivity and professional boundaries it had ordered. The 2018 Panel took into consideration the finding of the 2012 Panel set out above which was based on the Applicant’s testimony and conduct of the hearing on the second set of misconduct allegations. This is not a finding that the Applicant’s misconduct at two courthouses was an aggravating factor. The 2018 Panel concluded that the Applicant continued to have no insight into his behaviour notwithstanding the benefit of the 2011 Panel’s findings (and presumably the counselling). This was not a case in which the conduct was “only determined to be inappropriate as a result of the ultimate decision”. Sexualized conduct in the workplace has been prohibited for decades. The 2018 Panel found that the nature of the misconduct and its lack of connection to the judicial function were factors weighing against compensation. It also found that the Applicant should have known that the conduct was inappropriate by the time of the second hearing which was a factor making it less deserving of compensation. These were findings open to the 2018 Panel to make in accordance with the criteria set out by Nordheimer J. in the 2016 Divisional Court Decision and are not unreasonable.
[52] With respect to the Applicant’s submissions that the decision of the 2018 Panel undermines the rationale for judicial independence (which includes financial security), this submission has little merit where the conduct at issue was found not to be related to his judicial function.
(b) Relevant jurisprudence, the statutory framework, and the factual record
[53] The Applicant contends that the decision ignores the relevant authorities, the language of the Act, the JPRC Procedure Document and the evidentiary record concerning the Applicant’s knowledge and state of mind. The Applicant relies upon several decisions wherein recommendations were made for financial contribution even though misconduct was found.[^16]
[54] The fact that in other cases with different circumstances, other panels made recommendations in favour of compensation does not make this decision unreasonable. Justice Nordheimer held in the 2016 Divisional Court Decision:
[57] All of that is not to say that, in every case where a judicial office holder is subject to a successful complaint, that judicial office holder can expect that his or her legal expenses will be compensated. It is a decision that must be made separately in each case and only after a consideration of the particular circumstances of the case viewed in the context of the objective of the process…
[58] This case itself presents as an example of how different circumstances can give rise to different decisions on compensation. The 2011 Panel recommended that the applicant be compensated for his legal expenses. The 2012 Panel did not. Those apparently conflicting results, though, simply reflect that there were crucial differences in the circumstances between the two proceedings.[^17]
[55] The Applicant submits that the decision is unreasonable because neither the Act nor the JPRC Procedure Document expressly allows a Hearing Panel to recommend no compensation at all.
[56] I do not agree. There is broad discretion under s.11.1(17) of the Act whether to recommend that a justice of the peace be compensated for legal services. At para. 25 of its decision, the 2018 Panel “dismisses Mr. Massiah’s request for a recommendation that he receive compensation ...” There is no merit to the Applicant’s argument that the Act and the JPRC Procedure Document do not authorize the Panel to recommend no compensation.
(c) Critique of counsel’s conduct
[57] The Applicant argues that the 2018 Panel unreasonably found that Mr. Guiste’s conduct and the Applicant’s continued retainer of Mr. Guiste weighed against a recommendation for compensation. He submitted that these findings are not compatible with the proper role of counsel as a fearless advocate[^18] and inappropriately reaches “into the historical sacrosanct relationship as between client and his lawyer”. The Applicant contends moreover that the 2018 panel’s comment that he “ought to have known that multiple instances of misconduct would be found in the case brought before the 2012 panel” seems to suggest that the panel was of the view that the Applicant should have pled guilty to the second complaint. He adds that the finding that he is a vexatious litigant is highly improper as there was no application made to have the panel declare him so.
[58] I see no error in the 2018 Panel taking into account the conduct of Mr Guiste and the Applicant in determining whether a recommendation of compensation should be made. There is nothing to support the argument that the Applicant or Mr. Guiste was penalized for making allegations of racial discrimination.
[59] The Panel’s comment that the Applicant “ought to have known that multiple instances of misconduct would be found in the case brought before the 2012 panel” cannot be read in isolation but must be considered along with the findings that the Applicant demonstrated no insight into his behavior, the nature and objective of the process and his role as a justice of the peace within the justice system.
[60] Nordheimer J. held that the decision whether to recommend compensation for legal costs must be viewed in the context of the objective of the proceeding which is to maintain or restore public confidence in the integrity of the judiciary in general. The 2018 Panel held that the manner in which the Applicant responded during the disciplinary hearing was a consideration in whether the public should bear his legal costs if public confidence in the judiciary and in the judicial discipline process is to be preserved. It held:
(18) Among the many tactics employed to frustrate and delay proceedings, Mr. Massiah, through Mr. Guiste, filed a number of frivolous and vexatious motions interrupting the Panel's deliberations, as well as alleging, without basis, bias and various other acts of misconduct on the part of people involved in these proceedings. In response to various motions, the presiding Panel issued a number of decisions refusing permission to re-litigate matters that had already been determined, decisions involving allegations of abuse of process, lack of jurisdiction, motions involving disclosure of materials which had already been disclosed or simply did not exist. There was no basis for the vast majority of these motions, which consumed a great deal of time.
[61] Considered from the perspective of public confidence in the judiciary and in the judicial discipline process, there was nothing unreasonable in concluding that the manner in which the Applicant responded to the disciplinary process had the effect of further compromising public confidence in the judiciary rather than restoring it. The findings of similar misconduct in the previous hearing to which the Applicant sought and received compensation at public expense and the accounts submitted by Mr. Guiste which were found to be “unreasonable on their face” were legitimate considerations which weighed against recommending compensation.
[62] Nordheimer J. held that “it is open to a hearing panel to include in its recommendation for compensation that such compensation should not include the costs associated with steps taken that, in the view of the hearing panel, were unmeritorious or unnecessary.”[^19] There were eight decisions rendered by the 2012 Panel where the Applicant’s motions were found to be frivolous. The objections were technical in character and without exception were found to be without merit. The 2018 Panel found that Mr. Guiste’s conduct before it included frivolous, meritless allegations about the Registrar, Presenting Counsel and the 2018 Panel. It found that Mr. Guiste’s and the Applicant’s conduct of the hearing before the 2012 Panel and also before the 2018 Panel did not advance the objective of the judicial discipline process in maintaining or restoring public confidence in the integrity of the judiciary. None of this violates the Applicant’s right to counsel, judicial independence or the remedial objective of judicial misconduct proceedings.
[63] The Applicant’s reliance on Groia v. Law Society of Upper Canada[^20] is also misplaced. Groia sets out the test for incivility in the professional misconduct context and does not insulate counsel’s conduct from criticism by a court or tribunal.
[64] The Applicant submitted that it was highly improper for the 2018 Panel to find that he was a vexatious litigant and that an application had first to be served on the Applicant and an opportunity given to defend himself before such a finding could be made. The finding that the Applicant was a vexatious litigant was for the purpose of describing his conduct in the proceeding as a factor relevant to whether there should be a recommendation of compensation for legal services. I find nothing unreasonable or improper about that. It was not an order to prevent the Applicant from instituting any further proceedings which is required to be obtained on application.
[65] In other circumstances, the fact that there was no criticism of counsel for the Applicant, Mr. House, who conducted the hearing proper before the 2012 Panel, might have militated in favor of a recommendation of compensation of partial costs. However, given the circumstances addressed above which I have found the 2018 Panel reasonably relied upon, it was open to it in the exercise of its discretion to decline to recommend compensation.
[66] The exercise of the discretion under Section 11.1(17) of the Act to make a recommendation for compensation must be guided by the factors enumerated by the 2016 Divisional Court decision. The 2018 Panel considered each of the factors identified by Nordheimer J. and explained why each of them militated against making a recommendation. The reviewing court must read the decision maker’s reasons in light of the history and context of the proceedings in which they were rendered.[^21] There is nothing in the record to support the allegation that the 2018 Panel applied an inappropriate stereotype in making its decision. The 2018 Panel’s reasons were sufficient to support its decision when read in light of the history and context of the proceeding and I find no failure of justification, intelligibility or transparency.
Issue 3: Are the LGIC and the AGO Proper Parties to this Application?
[67] The LGIC and AGO submit that neither party is a proper respondent to this application because the application does not seek an Order, or any relief, in respect of any exercise of statutory power by the LGIC or AGO for for which they are responsible in law. They argue that pursuant to the Act, there is no statutory power to exercise regarding compensation until the hearing panel recommends it. Where the hearing panel declines to recommend compensation, as was the case here, there is no decision for the LGIC or the AGO or to make nor a statutory power to exercise. According to the LGIC and AGO, this statutory framework which divides responsibility as to the recommendation and the decision to compensate, is intended to protect the judicial independence of justices of the peace from interference by the Executive in a discretionary or arbitrary manner. The LGIC and AGO further submit that while the Applicant raises an issue as to his constitutional right to a fair and impartial hearing in his Notice of Application and alludes to an entitlement to payment of fees at para. 30 of his factum, the Applicant is not permitted to challenge the constitutional validity or applicability of the Act or any other legislation on this application because he has not served a Notice of Constitutional Question in this application.
[68] The Applicant submits that a Notice of Constitutional Question was properly served and filed on or about February 16, 2017, on the court-ordered re-hearing.
[69] The Applicant’s motion raising the Constitutional Question purported to challenge the constitutionality of various aspects of the judicial conduct regime. In a March 6, 2017 decision the panel found that it had no jurisdiction to hear the motion, ruling that they had one limited matter for reconsideration-they must correct an analytical error and apply the analysis set out by the Divisional Court to decide whether to recommend that the Applicant should be compensated for some, all or none of his legal costs. The motion raising the Constitutional question was found to either border or cross the line into an impermissible attack on the Divisional Court ruling which, with leave denied by the Court of Appeal, is final.
[70] The right to a fair and impartial hearing is not in dispute. The right to an entitlement of payment of fees in the context of a judicial officer’s discipline proceedings was dealt with by this court in the 2016 Divisional Court Decision. It held that it is not in every case where a judicial officer is the subject of an unsuccessful complaint that he or she can expect that legal expenses will be compensated. The appeals from that decision have been exhausted. In the limited issue before this court regarding the reasonableness of the decision of the 2018 Panel’s decision not to recommend compensation for the cost of legal services, I find that there is no jurisdiction to consider the issue of the constitutionality of the enabling legislation.
[71] II I agree that where the hearing panel declined to recommend compensation, as is the case here, the LGIC and AGO are not proper respondents.
Conclusion
[72] In the result, the application for judicial review is dismissed.
[73] As agreed between the parties, the JPRC is entitled to costs in the amount of $15,000 all inclusive payable by the Applicant.
Backhouse J.
I agree___________________________
Sachs J.
I agree___________________________
Favreau J.
Released: August 31, 2020
CITATION: Errol Massiah v. Justices of the Peace Review Council, 2020 ONSC 4746
DIVISIONAL COURT FILE NO.: 808/18 DATE: 20200831
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, Backhouse and Favreau JJ.
BETWEEN:
Errol Massiah Applicant
– and –
The Justices of the Peace Review Council – and – The Lieutenant Governor by and with the advice and concurrence of the Executive Council of the Legislative Assembly for the Province of Ontario and the Attorney General of Ontario Respondents
REASONS FOR JUDGMENT
Backhouse J.
Released: August 31, 2020
[^1]: Rules of Civil Procedure, R.R.O. 1990, Reg.194. [^2]: Massiah v. Justices of the Peace Review Council, 2016 ONSC 6191 (Div. Ct.) [^3]: Massiah, at para. 12. [^4]: Massiah, at para. 14. [^5]: Massiah, at para. 49. [^6]: Massiah at para. 56. [^7]: Massiah at paras.56 and 60. [^8]: 1965 276 (ON CA), [1965] 2 O.R. 721 (C.A.). [^9]: Justices of the Peace Review Council Procedure Document, revised May 14, 2015, p.15. [^10]: Section 11.1(4) of the Justices of the Peace Act makes the Statutory Powers Procedure Act R.S.O. 1990,c.S.22 (with the exceptions of ss. 4 and 28) applicable to JPRC hearings. [^11]: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 SCR 817, at para. 33 [^12]: Kindler v. Canada (Minister of Justice), 1991 78 (SCC), [1991] 2 SCR 779, at pp. 856-857 [^13]: Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 SCR 3, at para. 121 [^14]: Bilodeau-Massé v. Canada (Attorney General), 2017 FC 604, [2018] 1 FCR 386, at para. 176 [^15]: Guy Régimbald, Canadian Administrative Law, 2nd ed. (LexisNexis, 2015), at p. 298 [^16]: Re: Obakata JPRC (2003) and Re: Foulds (2018). [^17]: Massiah at paras. 57 and 58. [^18]: Groia v. Law Society of Upper Canada, 2018 SCC 27, [2018] S.C.J. No. 27. [^19]: Ibid. [^20]: Groia v. Law Society of Upper Canada [2018] SCC 27. [^21]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para.94.